On March 9th, 2023, the South Carolina Supreme Court issued an Administrative Order stating the allowance of cell phones and other electronic devices in the South Carolina courthouses are allowed. The order does limit the use of such devices within the courtrooms, giving that discretion to the sitting Judge.
It also raises another question of Constitutional Protection, which the State Supreme Court chose to ignore.
As many of us were taught, it is a Constitutional Right and Protection to record Public Officials in their duties to the public, including Law Enforcement Officers. The U.S. Court of Appeals for the 11th Circuit, held that there is a First Amendment Right to record within Courts as it raises matters of public interest.
The recent Administrative Order places limits on these protected rights by giving the power over to the individuals who would be recorded, Judges and Clerk of Courts. It has been a tradition (not a law) that a person could apply to the courts if they planned on recording a particular hearing or proceeding, this has always been simply a courtesy to the courts. But as many courtesies this was later taken to be a rule, ignoring the fact that it was a protected right.
The outstanding decision on the protected right to record Judges and Clerk of Courts will ultimately fall on the U.S. Court of Appeals for the 4th District, which includes South Carolina. As mentioned above many of the U.S. Court of Appeals have stated the allowance of recording these individuals is allowed under the U.S. Constitution.
This issue has been slowly changing to the public’s opinion of allowing cameras and other recording devices in the Courts. Many have asked that the issue of Qualified Immunity, that ties into these issues be removed from public officials.
What is Qualified Immunity? Qualified immunity is a judicially created legal principle that protects state and local government officials from being sued for their actions in civil court.
This judicial principle has allowed many judges and public officials to get away with abuse of powers, as long as they do it in their official capacity, and as long as they do not violate “established law”.
The real question should be asked, “Why are Judges and Clerk of Courts and other public officials scared of being recorded if they are following the law?”
In the past 10 years more and more complaints are being filed against these officials for violations of law and civil rights. Recordings of these violations would only benefit the public and would serve to show the unqualified individuals in these positions. States such as California now has laws placing cameras in every courtroom and can be obtained through a Freedom of Information Act filing.
Opposition to these transparencies claim these cameras would violate protections for the litigants or children. While other legal professionals state there are rules in place to protect clients from having their names published and especially when it comes to children.
Our Judicial System should be one of our most transparent as it shows how our laws are being applied to the citizens of South Carolina.